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Social Media and Defamation

“Social media is a catch-all term for a variety of Internet applications that allow users to create content and interact with each other”.[1]In the use of social media, one can attract both criminal and civil liability if due caution is not exercised.

Defamation is a civil wrong that can easily be committed in the use of social media.

Defamation simply means the making of a false statement which defames or harms another person’s reputation. It has been defined as “a statement which if published of and concerning a person, is calculated to lower him in the estimation of right thinking men or cause him to be shunned or avoided or to expose him to hatred, contempt, or ridicule or to convey an imputation on him disparaging or injurious to him in his office, profession, calling, trade or business.”[2] Words which defame or harm another person’s reputation are defamatory

“To Publish” as used in the definition means making the defamatory words known to a third party, a person other than the person defamed, by whatever means. In social media it could take the form of posting a comment, image, video, audio, tweeting e.t.c.

Defamation takes two forms; Libel and Slander. Libel is defamation in a permanent form, mostly written or printed words, whereas slander is usually expressed through speech. Libel is written or visual defamation while slander is spoken or oral defamation.

Social Media has made it possible for defamatory words to reach a larger audience within a short time, so the threat that defamation poses is real and great. When one posts comments, videos and audios, comments on a post, tweets or when one uses the social media in any way, one ought to be careful in order to ensure that untrue statements are not made about the reputation of a person. A person who did not create the original defamatory statement but who “publishes” it by retweeting or sharing the post is also liable for defamation.

The law on defamation seeks to protect a person from having untrue statements made about his/her reputation; it seeks to protect a person’s reputation. However, in the unfortunate situation that untrue statements are made about a person’s reputation, thereby tarnishing the person’s reputation, it tries to remedy the situation, by imposing some sanctions on the person who has defamed the complainant.

WHAT CONSTITUTES DEFAMATION?The tort of defamation generally consists of the following elements (1) False statement of fact made about a person; (2) The words must be capable of a defamatory meaning or by reason of an innuendo; (3) The defamatory words spoken must be spoken concerning another living person; (4) The defamatory statement must have been published to a third party;(5) There must be some degree of fault on the part of the person making the statement;(there should be no legal justification for the defamatory statement) and(6) The defamatory words must cause harm to the reputation of the person defamed (in the case of Libel, there need not be any harm, it is sufficient that the words are defamatory)

DEFENCESThe following defences could avail a person who is alleged to have defamed a person:

Truth: The law would not protect an integrity a person does not possess; hence truth remains a complete justification to defamation.Fair Comment: For this defence to avail a person, he needs to show that the facts on which he based his comment are true and existing facts, that the matter was one of public interest and that the comment was a fair inference from the facts.3.Privilege: Qualified privilege is a defence to defamation. Statements made in the discharge or performance of a duty (whether it is a public or private duty) or made in the protection of lawful interest would be covered under this principle, provided it is made in good faith and it is made to persons who have a duty to receive the information. Such a statement would be considered to be published on a privileged occasion. It is not actionable even though it is defamatory and turns out to be untrue.

Caution should therefore be exercised in the use of social media, to avoid incurring legal liability.